FMG risk massive native title liability at Solomon
4 March 2013
On 13 February 2013, in response to the Federal Court’s decision validating the appointment of a new and unified Applicant group for the Yindjibarndi #1 Claim, Fortescue Metals Group (FMG) CEO, Nev Power, issued a press statement saying: “the Federal Court of Australia decision […] does not impact Fortescue’s current or future operations in the Pilbara”; “Fortescue has acquired all of the necessary tenure for its Solomon operations”; and “Fortescue continues to comply with all legal requirements and to act in good faith”.
Mr Power has totally missed the point.
George Irving, veteran native title lawyer and In-House Legal Counsel for the Yindjibarndi Aboriginal Corporation (YAC), provided sober context to FMG’s statement:
“Although it’s true to say FMG has obtained some tenure for the ‘Solomon Project’, which will allow some of the proposed operations to proceed, the vast majority of the tenure applications sought by FMG for the Solomon Project are still pending. Those applications affect both the Yindjibarndi Native Title Area and the Yindjibarndi #1 Claim Area. It follows that FMG must now come back to YAC to negotiate an agreement for the grant of that additional tenure.
“FMG do not have an Indigenous Land Use Agreement (ILUA) with the Yindjibarndi People, and they operate outside the security of such an agreement, leaving them with a substantial liability for compensation under the Mining Act once the Yindjibarndi #1 claim is determined.”
The Yindjibarndi Aboriginal Corporation wants to make clear:
- The Yindjibarndi Aboriginal Corporation is the elected representative institution of the Yindjibarndi People; the Native Title Prescribed Body Corporate (PBC) appointed by Federal Court to hold in trust the native title rights of the Yindjibarndi People in the Yindjibarndi Native Title Area; and, the duly appointed agent for the Applicant in the Yindjibarndi #1 Claim Area (where FMG is mining).
- The powerful democratic action of the Yindjibarndi People in electing a new Applicant group for the Yindjibarndi #1 Claim, in order to be rid of FMG’s influence in the former Applicant group, clearly demonstrates that FMG does not have the consent of the Yindjibarndi People for the Solomon Project;
- The tenure obtained to date by FMG through the Native Title Tribunal, and the approvals granted under State heritage processes, were procured, upon the payment of fees, solely through the agency of the Wirlu-murra Yindjibarndi Aboriginal Corporation (WMYAC)—a breakaway group established by FMG and former FMG employee Michael Gallagher—against the vigorous opposition of the Yindjibarndi People;
- WMYAC and the private companies associated with it, which FMG continues to deal with, have no authority regarding Yindjibarndi native title; and are not accountable to the Yindjibarndi native title party or future generations of the Yindjibarndi People;
- Pursuant to a determination of native title in the Yindjibarndi #1 Claim, and while operating outside the terms of an ILUA, FMG remains exposed to liability for payment of compensation to the Yindjibarndi People for any impairment of their native title rights, and for any social disruption or physical damage caused by its operations;
- Private business agreements struck between WMYAC and FMG have no relationship to native title or the broader Yindjibarndi native title party, and do not mitigate FMG’s liability, which was spelled out in the Federal Court decision of 20 July 2012.
Wirlu-murra Unauthorized & Unaccountable
Instead of heeding the Federal Court decision and dealing with YAC, on 21 February FMG announced that a $200 million mining services joint venture at its Solomon Project would be awarded to the benefit the Wirlu-murra breakaways.
It is disturbing to the Yindjibarndi people that the financial dealings of WMYAC, Wirlu-Murra Tablelands Heritage Pty Ltd (WMTH) and a third private company, Wirlu-Murra Yindjibarndi Services Pty Ltd (WMYS), all of which opportunistically exploit the native title rights of the broader Yindjibarndi group, and all of which are controlled by a largely common set of a dozen directors, remain hidden. The two private companies do not have to answer to ORIC rules.
The millions of dollars FMG pay to the Wirlu-murra (whose 2012 General Report to ORIC showed income of $5.6 million), and to the private companies established by some of its directors purely for the purpose of contracting with FMG, serve the interests of a small group of directors and their families. Moreover, these Wirlu-murra entities have no fiduciary responsibility to properly distribute profits gained from FMG for the benefit of all Yindjibarndi people—they operate outside any mechanisms of consent, accountability, or responsibility to current and future generations of the Yindjibarndi People.
FMG Claims Of Good Faith Disingenuous
While FMG continues to bypass the elected and authorised institutions of the Yindjibarndi People on native title and heritage matters, and continues to operate without the support of either the Applicant for the Yindjibarndi #1 Claim or YAC, its claims that it will continue to “act in good faith”, and “focus on reaching an agreement with Yindjibarndi people” are disingenuous.
Mr Irving stressed, “FMG has no right to negotiate any native title agreements with individuals. What the Court’s decision makes absolutely clear is that FMG is now obliged to negotiate in good faith with YAC, the duly appointed Yindjibarndi PBC, and the authorised Agent of the Applicant, to make an agreement beneficial for all Yindjibarndi People.”
FMG’s statement that it “will continue to support and engage the Wirlu-murra Yindjibarndi Aboriginal Corporation”, is not only disrespectful of the Federal Court decision of 13 February, but signals its intention to continue to pay WMYAC members and directors to say that they and all other Yindjibarndi people have no knowledge of any heritage values in any parts of Yindjibarndi country required for FMG’s Solomon operations, thereby expediting State approvals for the destruction of hundreds of sacred sites known to YAC and its members, including rock shelters and rock art that demonstrate occupation by the Yindjibarndi People for in excess of 40,000 years.
Serious questions arise regarding the reasons for FMG’s financial support of the Wirlu-murra companies. Michael Woodley, CEO of the Yindjibarndi Aboriginal Corporation, observed:
“The tragedy is that the WMYAC directors have been told by three independent native title experts, Greg McIntyre SC, Professor Marcia Langton and Peter Seidel (a senior partner at Arnold Bloch Leibler who heads the firm’s native title practice) that YAC’s original assessment of FMG’s land access agreement was correct; namely, it is “crap” and should be renegotiated. However, instead of renegotiating, WMYAC’s lawyers, who are funded by FMG, continue to fight YAC in the courts for the sole reason that we will not sign their inequitable agreement.”
FMG Remains Liable
In the Federal Court decision handed down on 20 July 2012, which allowed FMG to be joined as a respondent to the native title determination application made on behalf of the Yindjibarndi People for the Yindjibarndi #1 Claim Area, Justice McKerracher said:
“A determination of native title in favour of (the Native Title Applicant) may entitle the (Yindjibarndi People) to compensation payable by FMG pursuant to s 123 of the Mining Act or s 24MD(3) NTA and s 125A of the Mining Act. The fact that a determination in the proceeding may give rise to a liability on the part of FMG to pay compensation clearly shows that FMG may be affected by the determination.”
According to Legal Counsel George Irving, the Yindjibarndi native title claim over the Vacant Crown land (VCL) in the Yindjibarndi #1 Claim area, is one of the strongest he has encountered: “The evidence I have seen and heard over the past four years about the connection between Yindjibarndi people and the Vacant Crown Land area in the Yindjibarndi native title claim is the best and most detailed evidence of connection I’ve encountered in nearly 20 years of native title practice. In my opinion, the Yindjibarndi People are lawfully entitled to have their traditional right to exclusively possess, occupy, use and enjoy the VCL (including FMG’s proposed mining areas) legally recognised through a determination of native title.”
The statement issued by Michael Woodley a year ago, on 16 February 2012, continues to hold true: “I want to make clear to all of FMG’s investors, lenders and joint venture partners that FMG has never obtained the consent of the Yindjibarndi People for its Solomon Project. FMG does not possess the social license or operational security that a legitimate Indigenous Land Use Agreement would give, over any of its interests in our country.”
Mr Woodley said, “YAC is willing to work with Fortescue to reach a fair and workable Indigenous Land Use Agreement, however, if FMG chooses to continue operating outside an Agreement and respectful heritage protocols, YAC is totally committed to seeking justice for our people today and all future generations; and upon a successful determination of native title in the Yindjibarndi #1 Claim, we will sue Fortescue for full compensation for damages.”